COMMISSIONER, WESTERN AUSTRALIA POLICE and TADDIA
[2018] FCWA 105
•1 JUNE 2018
JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA
ACT: FAMILY LAW (CHILD ABDUCTION CONVENTION) REGULATIONS 1986
LOCATION: PERTH
CITATION: COMMISSIONER, WESTERN AUSTRALIA POLICE and TADDIA [2018] FCWA 105
CORAM: THACKRAY CJ
HEARD: 28 & 29 MAY 2018
DELIVERED : 1 JUNE 2018
FILE NO/S: PTW 4122 of 2013
BETWEEN: CHRISTOPHER JOHN DAWSON COMMISSIONER, WESTERN AUSTRALIA POLICE
Applicant
AND
MR TADDIA
Respondent
Catchwords:
CHILD ABDUCTION - Hague Convention - Children habitually resident in Italy before being wrongfully retained in Australia - Requirements for an order for return met - Father asserts there is a grave risk of psychological harm to the children or that they will otherwise be placed in an intolerable situation if they are returned to their mother in Italy - Father also argues elder child objects to being returned and therefore enlivens reg 16(3)(c) of the Family Law (Child Abduction Convention) Regulations 1986 (Cth) ("the Regulations") - Found the return of the children to Italy would be more likely to enhance their psychological welfare rather than diminish it - No grave risk of psychological harm within the meaning of the Regulations if children returned and they will not be placed in an intolerable situation - Exception in re 16(3)(c) made out in relation to elder child - order made for return of both children notwithstanding elder child's objection.
Legislation:
Family Law (Child Abduction Convention) Regulations 1986 (Cth)
Convention of 25 October 1980 on the Civil Aspects of International Child Abduction
Category: Reportable
Representation:
Counsel:
| Applicant | : | Ms Eagling |
| Respondent | : | Mr Berry SC |
Solicitors:
| Applicant | : | State Solicitor's Office |
| Respondent | : | Adamson & Adamson |
Case(s) referred to in decision(s):
Nil
WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT - PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED
1The Commissioner of Police, as the responsible Central Authority, seeks an order under the Family Law (Child Abduction Convention) Regulations 1986 (Cth) (“the Regulations”) against [Mr Taddia] (“the father”) for the return to Italy of [Sergio Taddia], born [October] 2002, and [Max Taddia], born [February] 2008. The proceedings were instituted by an application filed on 22 November 2017 at the request of [Ms Bagini] (“the mother”).
2Sergio, who will turn 16 this October, and Max, who turned 10 in February, have been in Australia since they came to visit the father for a six week holiday on 4 July 2017 pursuant to consent orders that allowed them to live with the mother in Italy and spend time with the father in Australia and elsewhere around the world. I accept that the father consented to the orders reluctantly but nevertheless they were made and have been recognised in Italy.
3The boys were not sent home to Italy on flights booked for them on 17 August 2017. They have since been living in Perth with the father and his wife and have had limited communication with the mother, especially since October 2017. Until last weekend, Sergio and Max had spent no time with the mother and their brother [Lapo], who is 18 years of age.
4Lapo has been living with the mother in Italy and has elected not to see his father, although they caught up last weekend when Lapo came to Perth with his mother for the trial. The mother and Lapo are booked to fly home to Italy next Monday, 4 June 2018, and the mother wishes to take the younger boys with them.
Common ground
5For the purposes of the Regulations it is not in doubt that:
·Italy is a signatory to the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction (“the Convention”);
·The children were habitually resident in Italy prior to coming to Australia;
·The mother has rights of custody in respect of the children under Italian law;
·The mother was exercising rights of custody when the father retained the children;
·The mother did not consent to the father keeping the children and they have therefore been wrongfully retained; and
·The application under the Regulations was filed within one year of the date on which the children were retained here, and both children are still under the age of 16 years.
The two issues
6All of the requirements for an order for the mandatory return of the children to Italy have been established, save that the father asserts the existence of facts which he argues would enliven two provisions of the Regulations that would allow me to decline to make a return order. The father carries the onus of establishing that one or both provisions apply.
7The father first asserts, by reference to reg 16(3)(b), that there is a grave risk that the return of the children to their mother in Italy would expose the children to physical or psychological harm or otherwise place them in an intolerable situation.
8The father secondly asserts, by reference to reg 16(3)(c), that Sergio objects to being returned; that his objection shows a strength of feeling beyond the mere expression of a preference or of ordinary wishes; and that he has attained an age, and a degree of maturity, at which it is appropriate to take account of his views. The father’s effort to advance the same proposition in relation to Max was properly abandoned at the end of the trial.
9It must be stressed at the outset that these proceedings are not primarily about the best interests of the children, but rather about the place where disputes about their best interests should be decided. I am therefore required to construe the Regulations having regard to the objects of the Convention, which include “to secure the prompt return of the children wrongfully removed to or retained in any Contracting State”, and by “recognising … that the appropriate forum for resolving disputes relating to a child’s care, welfare and development is ordinarily the child’s country of habitual residence” (reg 1A(2)(b) of the Regulations).
Background
10The mother and father were married in Italy in 1997. Lapo, Sergio and Max are the only three children of their marriage. The two eldest boys were born in Italy, while Max was born in [Country B], where the family was living at the time.
11The father came to Australia for work on a visa in January 2012. The mother and children followed him here in March 2012, but in July that same year the father left the former matrimonial home, and very soon commenced a relationship with his current wife, [Jasmine]. There is a dispute about whether he paid child support, or adequate child support, until payments commenced being made through the Child Support Agency in 2013.
12The mother and children returned to Italy to live in April 2014, after the mother was diagnosed with [a medical condition]. She had first obtained court orders permitting her to live there with the children, and for the father to spend significant amounts of time with them, including for up to six weeks a year during the Italian summer holidays. The father has since then had the two younger children visit him in Australia each year for a minimum of six weeks. They also visited him during the 2015 Christmas holidays, and the mother was not challenged on her assertion that they would have come again during the 2017 Christmas holidays, had the father not retained them here. Lapo’s decision not to visit his father since leaving Australia in 2014 was envisaged, or at least permitted, by the orders agreed between the parents.
13In February 2017, the mother was diagnosed with a medical condition and was thereafter hospitalised on occasions. While the mother was in hospital, the children were looked after by their maternal grandparents, but were in daily video contact with the mother. The mother and children live in the same apartment building as the grandparents and they usually take their meals together. The grandparents have always been closely involved in the lives of the children, save for when the mother, father and children were living overseas.
14The mother decided not to tell the father about her latest diagnosis as she anticipated he would commence further court proceedings if he found out that she was unwell. This belief was reasonably held, given the history following the separation.
15The mother agreed to the children coming to Perth from 4 July 2017 to 17 August 2017 during the Italian summer holidays. She went into hospital for [medical treatment] on 25 July 2017 and was discharged the day prior to the date on which the children should have been returned in August 2017.
16Although the children had been instructed to keep the mother’s illness a secret, Max disclosed it to the father’s wife some weeks after his arrival in Australia. On 31 July 2017, the father wrote to the mother about this, saying that he had in any event become aware of her illness from other sources. The father acknowledged that although Sergio had told him that the mother was having medical treatment, Sergio had also advised that she hoped to be out of hospital by the time the children returned home.
17The father’s email to the mother continued (errors in the original in this and in all other communications recited in this judgment):
Then we started a discussion with the boys about whom assists them in your absence: the grandparents.
Both boys are not happy with the relationship they had with their grandparents; [Sergio] in particular does not like their interference in his life and the fact that, obviously because of their age, they do not understand his way to seeing things and his needs.
I talked to [Sergio] for al long time, he has precise plans for his life and he says he does not want to stay in Italy.
In a nutshell [Sergio] sees his future out of Italy, it could be Canada, here or elsewhere I cannot say it. I know he prefers here because it is a hot climate. I know for sure that, since these are his desires and the fact that he aspires to work in the entertainment industry rather than to become a mechanical expert, continuing to live in a country where English is not widely spoken and where he has no chance of being involved in the environment in which he intends to develop his aspirations is unfair. Instead I believe it is our duty to respect his mature inclinations and his aspirations, if possible.
…
In the discussion with [Sergio] we discussed several points; the main- that I fully support- is the relationship with you.
[Sergio] is rightly concerned that his decision to move from [the mother’s hometown in Italy] will have a psychological impact on you (as it has on me) and that now when you are faced with a very difficult time of your life can cause you depression or anxiety.
[Max] is very happy to live with me, he likes Australia and has clearly expressed his desire to stay here and he also said he never told you about it, and he is very good English; he has an acute mind especially for computers and logic; I think he is good enough to be admitted to one of the schools for advantaged children, the same scheme [Lapo] had applied years ago.
18The father’s email sought to persuade the mother to have discussions with him with a view to the children staying in Australia and returning to Italy every four months during school holidays. However, in making this proposal he said:
I have always abided the agreements we have made (the kids always returned back to Italy on the dates we agreed) and I do not intend to change my behaviour right now.
19The mother had a conversation with Sergio in August 2017 in which he informed her that he intended to return home with Max on the scheduled date, and then return to Australia for Christmas and remain here – but that he wanted to discuss this with the mother in person first.
20On 17 August 2017, the mother sent to the father and his Italian solicitor a document from her medical adviser that confirmed she was being discharged from hospital and was in “good general condition and is currently able to take care of her children ethically and physically on their regular basis activities, with her parents help, who live next door flat”. On the same day, the mother sent the discharge form to Sergio, and he responded with a text saying “Me and [Max] want to come back to Italy as per the original plans”.
21When the father failed to send the children back to Italy as agreed, the mother promptly instituted procedures under the Convention, albeit her application was unfortunately not filed in this Court until 22 November 2017. In the meantime, the father had instituted parenting proceedings here, which have been stayed pending the outcome of the Convention proceedings.
22Without the mother’s knowledge, the father took the children to [Country S] on 28 September 2017 prior to a meeting he had arranged with the Department of Immigration and Border Protection for 5 October 2017. The meeting was arranged due to the fact that the children’s visas were about to expire. The father believed that the children needed to leave Australia and then return on their multiple re‑entry visas in order to avoid their presence here becoming illegal. The father anticipated they would be away for only one night; however, when he and the children went to the airport to fly back to Australia they were advised that there was an issue with the children’s visas and that they were not permitted to travel.
23Sergio in particular became extremely upset by this turn of events and he attempted to persuade the mother to sign immigration documents of some sort that would resolve the impasse that then developed. The mother was not prepared to sign unspecified documents, which she felt would stand in the way of the return of the children to Italy (especially as the documents seemed to involve the children obtaining permanent residency in Australia).
24Eventually, after agitation by the father, the children were permitted to return to Perth on 14 October 2017. Since then relations between the mother and Sergio have soured and he continues to blame her for the debacle in Country S. Correspondence between Sergio and his mother has at times been fairly acrimonious on Sergio’s part, while the mother has pleaded appropriately with Sergio to speak by video or face-to-face in Italy with a view to discussing his future (as Sergio himself had proposed in August 2017).
25During the time they were in Country S, Sergio wrote two letters to the Honourable Justice Moncrieff, who has had the conduct of the proceedings. The father says these were written without prompting or assistance from him (although the letters were then sent to the father’s solicitors from the father’s email account). The first part of the longer letter confirms that Sergio had told his mother in August 2017 that he intended to return to Italy and that “after a couple of months after my mum recovered and felt better that I would communicate that i had the intension of moving to Australia and that this December i would embark on a single way flight to Oz and i and would live hear”.
26Sergio’s letter went on to discuss his mother’s illness and treatment and complained that he and his brothers “must have spent more than 3 months without having care and support from [the mother]” and that during this period they were under the care of the maternal grandparents “that are very difficult to live with this was all done meanwhile [the father] was fully available and capable to assist and care for us”. The letter then joined in the disputes between the mother and the father about issues such as child support.
27Amongst other things Sergio also said in his letter that:
·The mother portrayed the father as “this evil ex-husband … [who] hated her, which isn’t true”;
·The mother and maternal grandparents described the father “as a criminal that doesn’t pay CSA one that left his ex and his 3 kids without a house and basically describing him as the criminal the family and all [the father] supposedly wants is to ruin her life, they try to convince me and my younger brother to separate us as much as possible from our father and our true wish to live in Australia”; and
·The mother had tried to convince him to go to Italy by saying “how can you trust a father that doesn’t pay CSA, do you really trust him with your future”.
28After recriminations about the mother’s alleged behaviour, Sergio’s letter went on:
-what would happen If we were to return to Italy:
first thing first I will never return to Italy to live with my mum or the family there and these are the following problems:
- returning the me and/or my brother would breach our fundamental freedoms and human rights.
- If we are to return there is a high probability that the we will be expose to physical or psychological harm and be targeted as a so called traitor to the family.
- If I would be sent to Italy I would immediately proceed with [the father’s] legal representative in Italy to return to Australia as soon as possible and during that time I wouldn’t live with my mum.
- If we were to return to Italy we would be considered as traitors for telling [the father] that our mum is sick and no one wants such to happen
- returning otherwise will place the us, especially myself in an intolerable situation dew to previous statement’s.
29Later in his letter, Sergio spoke of how he would be able to start his own business in Australia if he lived with his father, whereas in Italy there would be problems doing so “because of the difficulty imposed by the government (tax and just anti business behaviour)”.
30In his second letter to Justice Moncrieff dated 12 October 2017, Sergio sought to explain “what really happened” around the time he was retained in Australia. It seems this was a response to what he had found out his mother had said in her affidavit. In any event, in explaining why he had called the police in Perth, Sergio recorded that his mother had asked him on 17 August 2017 to telephone the Italian Consulate and the police when she found out that the father was planning not to return the boys. Sergio said he had initially refused, but that he changed his mind after Lapo called him and “convinced me to do so”. His letter further recorded that the police did, in fact, attend and had “a chat and check up on us that we were all ok, they just did there job”.
31In the same letter, Sergio said he had only sent his message of 17 August 2017 to his mother (in which he said he and Max wanted to return home) because she had asked him to do so. Sergio commented, “so that message wasn’t my wish or thoughts but my mums”.
32The father also provided emails from the maternal grandmother sent in August 2017 in which she tried to persuade Sergio to return to Italy. There were a number of references in the emails to the father’s failure to pay child support and to the fact that the grandparents had to assist in the boys’ maintenance, but I respectfully do not agree with senior counsel for the father that the grandmother was suggesting that the father had never paid child support. Reference was also made by the grandmother to the father’s conduct in having left the family to live with another woman. There was also criticism of Sergio for saying unpleasant things to his mother, given that she was so unwell. Sergio’s grandmother also counselled him not to “be persuaded by the last person who approaches you”.
33Lapo, in a letter adduced in evidence by the Central Authority, also expressed the opinion that “[Sergio] is very naive and tends to believe in the last thing you tell him, due to his age and personality he lacks the ability to comprehend the bigger picture and often thinks he is able to do everything on his own.” Lapo went on to say:
[Sergio] also states, in his letter, that our grandparents had not treated him well while living in Italy. I cannot deny that they aren’t always kind, but they are caring, though they prefer not demonstrate it openly. My grandparents have been supporting us since my earliest memories and in recent times, since the divorce, even more so. My grandmother has helped both [Sergio] and I scholastically, aiding us in our studies, especially in Italian and history, the subjects she used to teach at school. They have also contributed financially at times, such as in the last eight months, in which my father has not. I believe my brother has exaggerated greatly when speaking badly about them, not realising how much they have contributed to our well being and success at school.
34The father also provided an email that Lapo sent to him on 30 October 2014 after returning home to Italy with his mother and brothers. The letter was expressed in quite insulting terms, remembering of course that Lapo was 14 years of age at the time. Amongst some of the less vulgar things Lapo said was the following:
I don’t want to talk to you as I told you many times by email and on the phone and I think you still not have a clear idea of my situation … I don’t understand why we (myself, my mother and my brothers) have to live such a shit life when we have a father that has a well paid job and a promising career, a father who decided to be a dickhead … and keeps acting in such a way nonetheless.
35The father complained about the children allegedly always bringing up what they understood was his failure to pay proper child support. He said Sergio had believed that he had not paid child support but after “the psychologist that had been dealing with [Sergio] demanded [the father] show [Sergio] all the documentation relating to the payment of child support” the father “opened up his books” to Sergio to prove he had been misled by his mother.
36The father attached to his affidavit his own typed “CSA payment history from commencement in August 2013”. The first payment recorded was in September 2013. This was, of course, long after the father had left the home in the previous year, and does not disprove the mother’s claim that she had been obliged to rely on friends and charities following separation. The father asserts that prior to the mother asking the Child Support Agency to collect payments in 2013 he was paying bills and rent for her and $2,000 a month in direct maintenance payments. The issue was not sufficiently explored to establish the truth, but I accept that the mother was struggling financially following the separation, and this would have been apparent to at least Lapo.
37The mother attached to her affidavit a printout of an official CSA payment history suggesting the first payment of child support was not made until October 2013. Significant discrepancies between the two sets of child support records were not explored but the father’s own evidence confirms payments ceased at the beginning of 2017 after he became unemployed for six weeks and then changed jobs. The evidence of both parties confirmed regular payments were made from November 2013 until January 2017. I am nevertheless satisfied that the mother has from time to time relied upon others for financial support, including from her parents in 2017 when the payments stopped. I am not persuaded she led the children to believe she never received support from the father, but I do accept that she let them know that there were times when he did not pay child support.
The Family Consultant’s report
38On 30 November 2017 an order was made for a Family Consultant to prepare, with priority, a report directed to the two “defences” relied upon by the father. Unfortunately, for some reason (no doubt in part associated with pressure of work and the holiday break), the interviews did not occur until 30 January 2018 and the report was not published until 23 February 2018. The experienced Family Consultant who prepared the report was cross-examined during the trial and was able to support the findings and opinions in her report.
39The father accompanied the children to their interviews. The children were observed to have a warm relationship with him and “looked comfortable in [his] presence”. The children could not, of course, be seen with the mother, who spoke with the Family Consultant by telephone from Italy.
40I set out below relevant extracts from the Family Consultant’s report. Although the “defence” associated with Max’s objections was abandoned, I intend to reproduce parts of the report relating to him, as I consider it provides important context in which to consider Sergio’s stated objections. (I have omitted most of the references to Lapo’s alleged involvement with drugs/alcohol as there is very little reliable evidence on the topic and this issue was properly not pressed by senior counsel for the father in his closing submissions.)
INTERVIEW WITH THE CHILD [SERGIO TADDIA] born … October 2002 aged 15 years …
23.[Sergio] presented as an intelligent young man with a strong sense of humour … [Sergio]’s responses appeared age appropriate, although his vocabulary was sophisticated at times. He often used metaphors to explain his point and presented with a black and white view of things at times. [Sergio] frequently referred to the father as [Filippo].
…
25.… He advised he has lived in Italy and Australia and has decided he would like to remain in Australia.
26.[Sergio] said the singular thing he liked about Italy was, “the food of course!” He liked nothing else and spoke about an “ineffective” Government that is “corrupt” and “doesn’t support small business”. [Sergio] is of the view Italy has an immigration problem and that there are many unnecessary “direct and indirect taxes”. He sees a bleak future for himself if he remains living in Italy. [Sergio] stated, “compared to Australia Italy is a third world country”. When asked what would be the worst thing about going back to Italy [Sergio] answered, “if I am happy, why would I slit my wrist and cut my arm off?”
27.[Sergio] explained that he spent approximately five weeks in the Western Australian school system in 2017. He said he found it “of course different at first, but manageable”. He finds his peers “friendly and relaxed”. He reported to be enrolled in the 2018 school term and looks forward to attending. [Sergio] acknowledged close friends in Italy and says he is in regular contact with them. He has reportedly limited some of his conversations with old friends in Italy because he is suspicious his mother may end up with some information and “use it as a positive in her case”.
28.[Sergio] reported his aim was to initially return to Italy when the September/August 2017 holiday was over and discuss with his mother an intention to relocate to Australia in December 2017 to live with his father. His plan changed, he said, when the father travelled with the children to [Country S] regarding Visa issues. [Sergio] reported the [Country S] trip was “very stressful for us”. [Sergio] appeared to be angry with the mother and holds her responsible for the Visa cancellation. He advised, “we are not sure what happened, we think she did two Hague Conventions, one here and one in Italy”. [Sergio] is of the view the stress regarding the Visa problem he experienced was avoidable because the mother could have allowed the Visas to go ahead. He said the mother, “always said she could see my future in Australia and then was not okay with it when I chose”
29.[Sergio] acknowledged he is well informed about the court proceedings. He is of the view the Family Court is favourable toward mothers. He reported his mother and maternal grandparents “went on” about Child Support (CSA) issues. He said his father had applied for a reduction with the CSA because, “he changed jobs and you can’t pay the CSA what you don’t have”. He talked about it being increasingly difficult to acquire a Visa once he reaches 16 years of age and appeared well informed about the immigration processes. [Sergio] appeared grateful his father “showed me all the options” and said, “if I hadn’t have had the truth, the correct information, I would have gone back (to Italy)”.
30.In regard to the relationship with his mother [Sergio] acknowledged she had been the children’s main carer when they were young and in the recent years they have been living in Italy with her. In saying the mother has been the main carer, [Sergio] did point out that the maternal grandparents played a large role in the children’s care when the mother was unwell. [Sergio] reported his relationship with the mother was “good” prior to travelling to Australia during the holidays. This has changed according to [Sergio] because of the “new information”.
31.The consultant shared her observations (largely derived from the court paperwork) with [Sergio] regarding his apparent complete alliance with the mother after the separation and the recent shift toward his father’s views. [Sergio] advised the consultant of “Stockholm Syndrome” and is of the view he experienced something likened to this in the mother’s care. [Sergio] believes he has now been told the “truth” by the father. He said the mother “made [Filippo] out to be a liar” and she (the mother), “lied to Thackray (the Chief Judge) in court”.
32.[Sergio] explained the mother had required [medical treatment] in July 2017 as a result of the [medical condition] which meant she was hospitalised for some months. [Sergio], without any outward emotion, remembered when the mother was diagnosed with the [medical condition] and that it may “[be a serious medical condition]”. He explained the mother has a “delicate immune system” as a result of the [medical condition]. When asked how he might feel if he did not see the mother again [Sergio] replied, “If she dies it is her time, I can’t do anything about that”.
33.[Sergio] said when the mother was going through treatment the children were prohibited to visit because the mother could not afford any infections. [Sergio] reported he was forbidden to advise his father of the mother’s diagnosis because “she says he is the evil devil”. [Sergio] reported he did not enjoy being cared for by his maternal grandparents because, “it’s hard to have people around you who have a downward attitude about [Filippo]”.
34.The consultant mentioned there were some indications in the court paperwork that [Sergio] wished to return to Italy after the father retained the boys in August 2017. [Sergio] advised his mother told him to send messages to her that made it seem him and [Max] wanted to return to her care. [Sergio] reported his brother [Lapo] convinced him to call the police whilst they were in [Country S]. He thinks the mother encouraged [Lapo] to pressure him. [Sergio] is of the view his mother was attempting to build “evidence” the children wished to leave Australia.
35.[Sergio] reported a positive relationship with the father and his wife. He is of the view he is “not censored” in the father’s home. [Sergio] said he “always liked [Jasmine]”. He reported he could never acknowledge this however because the mother would not allow it. [Sergio] is of the view, “I have been heavily influenced by mum in the past”. He said, “I can finally have a relationship with [Filippo], we get along”.
36.[Sergio] reported “[Max] is a pain”. He is of the view [Max] is stubborn and they are not close because of the age gap. As for [Lapo], [Sergio] advised they “got closer” as a result of attending the same school in the previous year. He said [Lapo] is “stubborn” because [Sergio] has told [Lapo] “you have slim options left in Italy”. He reported [Lapo] refused to listen and is of the view [Lapo] is “a mamma’s boy”. [Sergio] reported that [Lapo] used [drugs] and alcohol and indicated the cause of this to be the lack of opportunity in Italy. [Sergio] said he and [Lapo] no longer have contact, however, “I hope to catch up with [Lapo] at some point”.
37.[Sergio] said he wants to live in Australia. He is of the view he and [Max] will have a brighter future if they stay. If he is made to return to Italy, [Sergio] said he “will go and get my things and go straight to my grandmothers (paternal) and then get the first plane back”. [Sergio] is of the view the biggest issue regarding returning to Italy is, “no opportunity”. [Sergio] feels he will experience “psychological abuse” if he returns to Italy. He said he will be seen as “a traitor” by his maternal family and that he will be exposed to the maternal family “turning me against [Filippo]”. [Sergio] noted his mother, “has a gun and the target is [Filippo] but the bullets have hit us (the children)”.
38.[Sergio] said he wants no current contact with the mother. He advised, “she played her cards and didn’t want to listen to me so those are the consequences”. When asked if he thinks the mother is missing him [Sergio] replied, “she can say what she says, but looking back, it’s like we were always a source of revenue and a way to get back at [Filippo]”.
INTERVIEW WITH THE CHILD [MAX TADDIA] born … February 2008 aged 9 years …
39.[Max] presented as a talkative child with higher than average intelligence and an obvious interest in history and world wars. Although [Max] displayed a keen sense of humour, he presented as a serious child at times with some signs of anxiety such as speaking rapidly and escaping into fantasy. [Max] was easily distracted from the conversation by other thoughts and ideas that came to him. Often he did not respond to questions, instead electing to provide the consultant with a comprehensive account of the history of war and of … war technology. [Max] often referred to the father as [Filippo].
40.[Max] did not display the emotions one would expect from a child his age. For example, [Max] presented as emotionally detached when discussing the separation from the mother and the mother’s illness. Sometimes he sounded as if he was reciting information he had been provided with or had overheard. He appeared to hold information about the Family Court and the parental separation which he seemed confused about. Some of [Max]’s answers did not make sense.
41.[Max] presented with an accent and reverted to talking in Italian from time to time, however he confirmed that he could clearly understand the consultant. When asked if he knew why he was speaking with the consultant [Max] replied in a dissatisfied tone, “what I’m feeling is mum sent a message to my teacher in Italy to make drawings of me coming back and sending them to me”. [Max] went on, “it’s always the same argument, we have the best food! Yes if you are in Italy you might think so, or if you are in France”.
42.[Max] provided geographical detail about Italy and began to talk about the first and second world wars and the contribution from volunteers. What he would miss if he did not return to Italy would be, “snow”.
43.[Max] was asked to tell the consultant everything he remembered from beginning to end about staying in Australia with the father. [Max] talked about the father travelling to Australia from the Middle East and the mother and children following him. He reported, “one story is dad fell in love with another girl and this lady is actually [Jasmine]”. [Max] informed, “then mum fell ill and thought she was going to die so dad agreed she could go back to Italy with us”. [Max] said angrily, “and that was a lie”. The consultant asked how [Max] knew this and he replied, “well she’s not dead”. When asked how he felt about his mother being unwell [Max] replied, “she is in a fight with Bacteria and my dad didn’t know it and she made me make it a secret”.
44.[Max] advised, “there was a major plan of getting the boys and separating them from their dad because of the divorce”. He said his mother missed Italy and “my dad was always paying for the tickets and mum was always delaying”. [Max] said, “we don’t know much because dad doesn’t want us involved”. When asked how he decides what to believe [Max] said, “my dad was always the only signature”. When attempting to clarify [Max] reported, “I am a bit mixed up but what I am technically saying is I believe my dad”.
45.When asked what he might be worried about if he returned to the mother’s care in Italy, [Max] reported the mother had ignored a party that [Lapo] hosted even though she had prohibited it. [Max] reported his maternal grandmother does not allow him to wash the dishes. He gave a detailed account of how to safely wash dishes making sure the sharp objects were handled with care. [Max] noted, “my mother is never teaching me, [Jasmine] has taught me this”.
46.The good things about his mother [Max] informed were, “she is always saving me, like she tells them off when the brothers pick on me”. Other things [Max] liked about living with the mother were the food and the view. He said he didn’t like that, “she (the mother) wants me in Italy badly”. He said he did not miss the mother but he missed the cat …
47.When asked how he knows his mother loves him [Max] informed his mother said “Tiamo” which means I love you and kisses and hugs him. When asked what the mother might say about why she loved him [Max] answered, “that I gave birth to this son and I should have him”. [Max] said, “but that’s not true without dad she would not have had the DNA”.
48.[Max] advised, “she was nice to me before I knew all this”. When asked to elaborate [Max] gave what appeared as a confused account of his experience in [Country S] when the father left Australia with him and [Sergio] because of the Visa issues. He talked about “when we had to leave the counter”. He informed it was very hot in [Country S] and that he, [Sergio] and the father stayed in a small room. He said this was “bad” because he could hear everything the father and [Sergio] were saying. [Max] reported, “all of a sudden everything is revealed”. He said his father had “told me because he is fighting for my freedom”. He reported the father told [Max] to tell the consultant the truth and that he had “the freedom to do what you like”.
49.[Max] advised his father loves him and shows this by kissing and hugging him. He informed that he loved [Jasmine] “but not as much as mum”. [Max] said [Lapo] and [Sergio] are unkind to him sometimes.
50.If [Max] had three wishes he would, create a parallel world, go back and forth through the worlds and create different worlds so he can disappear into one and appear in another.
51.[Max] said he wants to live in Australia. He provided reasons for this along the lines of [Sergio]’s reasoning including many reasons why Australia is better than Italy because of the opportunities. If his mother lived in Australia [Max] said he would live with his father because, “I am most related to dad because I am male”. [Max] spoke briefly about genetics however was difficult to follow. He said he might spend time with the mother if she was an Engineer.
52.[Max] informed he might live in Australia until his mother “realises I want to live here and all this stops”. He said, “when things are stable I will visit my mum I could stay a whole year”. [Max] said he misses his mother but that he would not live with her if he had a choice. He then began to talk about the mother “stopping the Visas” and “can’t afford all this; it’s a lot of money going to court”. He questions how the mother can afford a lawyer when she “couldn’t pay for the tickets”.
53.The consultant asked [Max] if he would feel safe returning to Italy and he replied, “no because my mum is still in a fight for her health and if I get sick I won’t see dad again”.
INTERVIEW WITH THE FATHER …
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60.The father advised he was concerned to hear about the mother’s [medical condition], and in particular, that the children had been encouraged not to talk about it. He formed the view they were not receiving adequate care as a result of the mother’s health issues and in particular was worried the children were not being supervised sufficiently. He said the children did not enjoy being cared for by the maternal grandparents. The children have told him that the grandparents talk negatively about him. The father is of the view he has not been provided sufficient information to confirm the mother has made a full recovery.
61.The father is of the view [Sergio] and [Max] will be afforded additional opportunity if they remain in Australia. The father spoke about the lack of employment opportunities in Italy and issues with the Italian Government.
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64.The father is of the view [Sergio] and [Max] have settled well into his care. He is convinced both children would rather remain in his care. The father acknowledged they may miss the mother on occasion and that the children enjoyed a positive relationship with her prior to travelling to Australia for the recent holidays, however, the father noted, “they get a lot of support from [Jasmine]”. He reported, “they show no obvious distress about their mother”.
65.The father is of the view that it would be emotionally and psychologically unsafe for the children to be forced back to Italy and into the mother care. He reported this course of action would be against the children’s wishes and breaching their human rights. He is of the view the children are old enough to make this decision. He is worried the children are largely unsupervised in a community where children use drugs.
66.The father is further concerned about the children receiving an inadequate standard of care as a result of the mother being unwell. The father is not convinced the mother’s health issues are behind her. The father feels that the children would be severely disadvantaged if they returned to Italy.
INTERVIEW WITH THE MOTHER …
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68.The mother was anxious to enquire about the children's presentation throughout the interviews. She presented as particularly concerned about how [Max] was managing “all the confusion” and sounded less anxious when advised that the boys appeared, on the surface to be coping, albeit [Sergio] seemingly more than [Max]. She became emotional at times talking about the children.
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70.She spoke positively about the children, the positive aspects of their personalities and the qualities she admires in them. She also spoke about her relationship with each child, the activities they participate in (including [Max]’s obsession with war and history which she reported comes from spending so much time with the maternal grandfather) and the emotional, physical and practical support she offers them. She said she loves the children very much and they love her in return.
71.The mother wants the children to be returned to her care in Italy. She reported [Sergio] and [Max] were content with their living arrangement prior to spending time with the father in September/August 2017. The mother informed when [Sergio] departed for the holidays, “he was happy to only be going for six weeks because he said 8 weeks was to long last time”. The mother stated, “when [Filippo] first retained them [Sergio] wanted to come home”.
72.In September 2017 [Sergio] reportedly began to advise the mother by telephone that he wished to stay with the father in Australia. The mother reported she urged [Sergio] to “come back home so we can discuss”. The mother is of the view it takes a lot of planning to relocate to another country. She feels that [Sergio] needed “continuity in his studies”. The mother stated, “I don’t see [Sergio] never going to Australia, it just needs discussing and careful planning beforehand”.
73.The mother advised she last had physical contact with the children in July 2017 prior to their departure for Australia. The mother reported she has found it increasingly difficult to communicate with the children during this time. She last spoke to [Sergio] in October 2017 when he requested she sign paperwork regarding his Visa. The mother believes [Sergio] has become increasingly angry with her, blaming her for the distress he experienced when the children were held in [Country S]. The mother is of the view the children endured “a shocking experience when the border stopped them”. She said, “[Sergio] became upset with me when I wouldn’t sign. I explained I could not permit the Visa because then the Italian legality would become invalid”.
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79.In relation to any psychological or emotional harm the mother said the children will be “welcomed home with love”. She advised the children would never be treated like ‘traitors’ as [Sergio] has suggested. She said she employed a nurturing parenting style that was supportive of the children having different opinions than hers. She informed she would be affectionate and loving and not ask any questions of the children upon their return.
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81.The mother confirmed that, if the children return to live with her in Italy, she will facilitate them spending time with the father during the summer breaks and discuss a return plan with [Sergio] that is in his best interest, in relation to the timing of any relocation to Australia.
41The Family Consultant then summarised her findings on the topic of whether the children object to being returned to Italy:
82.[Sergio] and [Max] both reported they did not want to be returned to the care of their mother in Italy. Explanations were based on the negative political and economic position in Italy and the benefits and opportunities in Australia. These views appeared closely aligned with the fathers. [Max] provided some reasoning that indicated he was confused such as he wants to stay in Australia because his mother has not taught him how to wash the dishes, and if he returns to the mother he may become unwell because she is.
83.[Sergio] reported a view that the young people in the village use drugs. He alleges his brother [Lapo] is a regular … smoker. He suggests the drug use is as a result of the village providing limited opportunities for young people and the consequent boredom. [Sergio] is of the view there are more meaningful opportunities in Australia and therefore feels he will not be tempted by drug use as a result.
42The Family Consultant next considered whether the children’s objections showed a strength of feeling beyond the mere expression of a preference or ordinary wishes:
84.[Sergio] and [Max]’s objections to being returned to their mother’s care in Italy seem to fall within the bounds of an expression of preference for a lifestyle in Australia over a lifestyle in Italy. The father and the children’s opposition to returning to Italy were very similar.
43The Family Consultant then addressed the issue of whether the children had attained an age and degree of maturity at which it was appropriate to take account of their views. In doing so, she addressed the matter by reference to Gillick competence principles. I have set out below a portion of this discussion, with reference only to Sergio:
a) the age of the child: [Sergio] is 15 years old and of an age where the court may place some weight on his views …
b) the child's history of making their own decisions: The children are not of an age where they would be given the opportunity to make significant decisions. The mother said she has a “nurturing” parenting style and encourages the children to make choices and decisions where it is appropriate, particularly for [Sergio] as he gets older and starts to develop his independence. Those decisions have included making choices for himself regarding friends, social activities and other extracurricular activities, within the limits set by the mother…
c) the child's intellectual functioning: Neither child has been diagnosed with any psychiatric impairment or mental health problem, and both appear to have a reasonably sophisticated world-view for children of their age. [Sergio]’s use of language was elaborate …
d)the child's level of understanding of the issues and the likely consequences of any decisions made: [Sergio]’s understanding of the issues positioned the father as right and the mother as wrong. His views did not appear balanced …
Both children demonstrated during the interview process that they may not have possessed the ability to understand the implications of some of the decisions they may make and the impact those decisions may have on them and their parents. [Sergio] appeared confident his opportunities and lifestyle would be superior in Australia with reasoning that mirrored his fathers. He appeared to minimise the relationships he enjoyed in Italy and presented as somewhat emotionally detached when it came to his mother’s illness and the idea of not seeing her again. This would not be so unusual if the mother and [Sergio] experienced a toxic relationship. There is however information on the court file that [Sergio] was aligned with the mother and hostile toward the father prior to the last holiday visit.
44The Family Consultant then summarised her views as to whether the children would be exposed to any harm or otherwise placed in an intolerable situation if returned to Italy:
86.Based on the information contained in the court documents and discussions with the parties, the consultant is of the view that in the event the children are returned to Italy, it does not appear the children would be exposed to any physical harm or placed in an intolerable situation. Further, if they are returned to Italy, it does not appear they are at risk of being emotionally or psychologically harmed by either parent more than they already have been. The psychological and emotional harm [Sergio] and [Max] experience by being placed in the middle of the parent’s war will possibly continue wherever the children reside.
45The next part of the report addressed the question of whether the children have settled into their new environment, but this issue does not arise for consideration.
46The Family Consultant concluded her report, under a heading “Recommendations”:
89.Both parents appear to have displayed a lack insight over time into the behaviours children may develop when placed in the middle of the parent’s ongoing conflict such as telling the parent they are with what it is they might want to hear. Further, children can gain a sense that they will be approved of if they reject the non resident parent. Children often employ this tactic to avoid disapproval and/or avoid being involved in the parental dispute. Oftentimes children do this to preserve their own emotional health. Sometimes they tell each parent contrasting views about what they want. Often children placed in this position are unaware of their authentic desires because they have been conditioned to align with one or other parent or because it takes less emotional strain to agree with the resident parent.
90.Information suggests both parties have attempted to gain the children’s allegiances by providing them information that positions the other party in an unfavourable light. It appears the children have been firmly aligned with the mother as a result, and are now likewise, firmly aligned with the father. There are no winners in situations like this. The only losers are often the children who are prone to developing emotional and psychological problems as a result of the parent’s inability to place the children’s needs above their frustrations with one another.
91.Regardless of the living arrangement, it is recommended the children are provided with therapeutic support so they may have an independent person to assist them to work through their feelings in relation to their living arrangement, the history of the parent’s separation and their acrimonious relationship.
92.The consultant would note that it is generally thought to be in the children’s best interests if siblings are kept together as a family and not divided between the parents.
Regulation 16(3)(b) – grave risk of harm
47The father’s Papers for the Judge identified a number of issues that were said to create “a grave risk, or a material likelihood, that if the children were returned to Italy they would be exposed to psychological harm or otherwise placed in an intolerable situation”. For good reason, not all of the issues identified were pressed by senior counsel in closing, but I will address each in turn.
48The first issue was the possible inability of the children to return to Australia to see the father because of being unlawfully here at the time of trial, with it being suggested that this was the mother’s fault for not consenting to appropriate visas being issued. The evidence adduced during the trial established to my satisfaction that the children are not unlawfully in Australia at the present time. If they are here unlawfully it would primarily be the fault of the father, not the mother, who in my view acted reasonably, for example, in not being prepared to sign whatever documents Sergio hoped she might sign whilst the children were stuck in Country S. Even if the children are no longer able to return to Australia because of the father’s actions, the oral evidence of the Family Consultant satisfies me that they would not suffer psychological harm or be placed in an intolerable situation, as it would still be possible for them to see the father either in Italy or elsewhere in the world.
49The second argument concerned the effect of the “ongoing and regular non‑compliance by the mother with orders permitting the children to spend time with the father in Australia (and in Italy)”. The evidentiary foundation for this assertion is weak, notwithstanding what the father has said in his affidavit and what the Family Consultant said in setting out the background to her report. The essential fact of importance is that the children have returned to Australia in accordance with the orders every year, and on one occasion twice in the same year.
50It is accepted that the father initiated legal proceedings in Italy and also contravention proceedings in Australia, but the fact of initiating such proceedings is not evidence of non-compliance with the orders and nor are the outcomes briefly referred to in the father’s evidence. The matters to which the father refers are equally consistent with the mother’s evidence that the father’s proposals in relation to individual visits exceeded his legal entitlements or otherwise failed to comply with the terms of the orders.
51Even if, as I am prepared to accept for present purposes, there was non-compliance with the orders, there is no evidence to establish that this has exposed the children to “psychological harm” within the meaning of the Regulations. The evidence is clear that by whatever means available the father has been able to spend time with the children and to maintain regular communication and a good relationship with them.
52The third matter relied upon, and the one most strongly pressed by senior counsel, was the psychological harm that it is claimed will arise from the “ongoing denigration of the father in the mother’s household by the mother and by her parents”. I accept the submission of counsel for the Central Authority that even put at its highest, the father’s evidence does not establish that this would give rise to a grave risk of “psychological harm” within the meaning of the Regulations. This is especially so when it is recognised that the period in which I am to consider whether the children will come to harm is not for the indefinite future but only until such time as the Italian court hears the matter and deals with what the father would have me accept are serious risk issues for the children.
53It is apparent that the children had accepted the mother’s narrative relating to the circumstances of the separation and the failure of the father to provide adequate financial support. This has no doubt come from a variety of sources including the mother, the grandparents and Lapo, who was of an age at the time of separation to make his own assessment of some of the circumstances surrounding the separation.
54Just as the mother has seemingly involved the children in issues associated with the breakdown of the marriage, so it seems has the father in seeking to have the children hear his side of the story. In an ideal world this would not happen, but the reality is that children, especially older ones, become caught up in marital strife and are inclined to take sides in the way the Family Consultant described. What is of greatest significance for the purposes of this application is that nothing that the mother has done or said appears to have prevented the children from being able to spend time with and communicate with the father.
55In particular, there was no evidence of the children refusing to come to visit the father or being problematic in their behaviour toward him when they have been visiting. On the other hand, difficulties have arisen with the mother’s relationship with the children while they have been in the care of the father since July 2017. There is no evidence that the father has done anything useful to deal with that issue, and in this context I note the almost identical alignment of his views and those of the children on many topics, even matters of politics.
56The evidence satisfies me that there is a much greater prospect of Sergio and Max continuing to enjoy a good relationship with their father if they are living in Italy than there is of them having such a relationship with their mother if they continue residing in Australia. Accordingly, even if it were true that a fracture in relationships with a parent could create the risk of psychological harm of the type envisaged by the Regulations, the return of the children to Italy would be more likely to enhance their psychological welfare rather than diminish it.
57It is important that I record that the mother made a favourable impression in the witness box. She was mature and measured in her responses and volunteered acceptance of her own culpability in the bitter conflict between her and the father. Most importantly, my observations of her, and my reading of the communications between her and the children, satisfied me that there would be little or no prospect of her “taking it out” on the children in the event they were permitted to return home with her. Having not had the opportunity to see the maternal grandparents cross-examined, I cannot form as firm an impression of whether they might have something negative to say to the children on their return home, but I consider it unlikely and anticipate that both boys would be welcomed with open arms.
58The final matter referred to in the father’s Papers for the Judge was the alleged grave risk of psychological harm to the children associated with the “ongoing concealment of material health information by the mother about her own health and telling the children to keep this “secret” from the father”. While the mother acknowledged that it was not appropriate to encourage the children to keep secrets from the father, I am satisfied that in doing so she was endeavouring to avoid the stress associated with more litigation in the event that the father attempted to take advantage of her temporary inability to care for the children. In this context, all of the evidence points firmly toward the conclusion that the mother, with the assistance of her parents, makes excellent arrangements for the care of the children and certainly proper arrangements were made for them during the mother’s hospitalisation.
59None of the father’s arguments having any substance, I am not persuaded that there is any grave risk of psychological harm associated with the return of the children to Italy, nor that it would place them in an intolerable situation. I should observe that the father’s case on this point was so lacking in merit that it has been unnecessary for me to delve into the question of whether the harm has to be associated with the return to a country rather than to a parent.
Regulation 16(3)(c) – Sergio’s objections
60The question of whether or not Sergio “objects” to being returned to Italy rather than merely preferring to remain in Australia is a question of fact, as is the question of whether he has the requisite degree of maturity. The objection strictly needs to be to the return to Italy rather than an objection to living with the mother but I nevertheless accept that the two issues may be so inevitably linked that they cannot be separated. In the present case, and certainly in Sergio’s mind, the return to Italy and the return to the mother are linked.
61The Family Consultant’s opinion was that Sergio’s “objections” to being returned “fall within the bounds of an expression of preference for a lifestyle in Australia over a lifestyle in Italy”. The decision as to whether Sergio’s statements are be treated as an “objection”, or alternatively as only an expression of a preference is, of course, a matter for me to determine rather than the Family Consultant. I appreciate, however, that she was responding to Terms of Reference that can be interpreted as inviting her to state her opinion.
62In my view, the evidence of most assistance here was the report of what Sergio said in his meeting with the Family Consultant, and his affect as observed by the Consultant. I place much less weight on what Sergio said in the letters which were written at what must have been a very stressful time for Sergio and the father, and whilst Sergio was cooped up in a hotel room with a very annoyed father and with his younger brother who presumably also felt overwhelmed by what was happening around him. I nevertheless consider it likely that Sergio’s views have continued to be strongly held right up to the time of trial, noting here that the father acceded to his request to attend and sit outside the courtroom throughout the trial.
63I am satisfied that Sergio does object to being returned to live in Italy with his mother. I am also satisfied that his objection shows a strength of feeling beyond the mere expression of a preference or of ordinary wishes. Sergio has sought to emphasise the strength of his wishes by making statements about running away and coming back to Australia. As Sergio is approaching 16 years of age and is an intelligent young man, I consider it appropriate to take account of his views, albeit I accept that there are a number of unsurprising indications in the evidence that he lacks the maturity one would, for example, expect in a young adult.
64For these reasons, I consider that the exception in reg 16(3)(c) has been made out and that it is necessary for me therefore to consider whether or not, in the exercise of my discretion, an order for his return to Italy should nevertheless be made.
65I have little hesitation in concluding that this is an appropriate case to make a return order, notwithstanding Sergio is an intelligent young person and at present has an objection to living in Italy with his mother. My reasons for so concluding are as follows:
·There are indications in the evidence that Sergio is an impressionable young person, who can be influenced by those around him, especially people he loves. I have in mind, for example, how he could be persuaded to telephone the police when his initial inclination was not to do so. Another example was his willingness to send a text to his mother saying that he wanted to go home to Italy in circumstances where he later said that this was not his true desire. If indeed it is the case that he can be so easily influenced over the telephone by his mother and elder brother, it is not difficult to conclude that he might be easily influenced by living full-time with his father and stepmother. In this context I consider it worth emphasising the reported lack of “outward emotion” when Sergio was making negative and hurtful remarks to the Family Consultant about his mother.
·The evidence establishes that Sergio had a close and loving relationship with his mother at the time he left Italy to come to Australia in July 2017. Notwithstanding his current stated adverse feelings about his mother, I consider it probable that he remains closely bonded with her and in any event would re-establish a good relationship with her after spending some time at home in Italy. This is not to say, given his age and current degree of irritation, that there will not be a period of “acting out”.
·I am satisfied there will be none of the retribution that Sergio has stated he fears will occur upon his return to Italy. On the contrary I expect he will be welcomed and that the adults in his life will appreciate the very difficult time he has experienced and understand the reasons why he came to adopt a negative attitude toward his mother while living with his father.
·I am also satisfied that the mother will have the conversation she wishes to have with Sergio about his future place of residence after he returns to Italy. This is what Sergio himself originally proposed last year. The mother has a realistic appreciation of the importance of Sergio being happy and a recognition of the fact that he is very soon to be an adult who will be able to determine his own future.
·I consider it most important that Max be returned to his mother and indeed I am obliged to make such an order given I have found there is no grave risk of psychological harm associated with his return to Italy. Max’s return to Italy will reunite him not only with his mother, who has been his primary carer throughout his life, but also with loving and attentive grandparents and with his eldest brother. I accept the evidence of the Family Consultant concerning the desirability of all of the siblings living together and this can only be achieved by an order for Sergio to return with the mother and Max.
·I would be very concerned about the long-term future of Sergio’s relationship with his mother in the event that he was permitted to continue to reside here without having the opportunity for a mature conversation with her at home in Italy. I am not persuaded that the father would encourage Sergio to have an ongoing satisfactory relationship with his mother if he remained here, especially given the absence of evidence of any great effort made by the father in that regard since October 2017.
·An order for return would also ensure that the father (and others who might be inclined to retain children during visits) appreciate that children must not be retained in breach of court orders. I appreciate that at one point the father had legitimate concern about the mother’s health and ability to provide adequately for the children’s needs. I accept also that he may have been responding to Sergio’s irritation with what he found to be annoying aspects of the supervision of the grandparents – which would not be unusual. However, I am not persuaded that the father considered that the children’s welfare was seriously at risk even while the mother was in hospital. If he did have concerns, the appropriate place for them to be ventilated was in the courts of Italy to which he has had recourse on a number of occasions.
66For these reasons Sergio should return home to Italy with his mother and brothers.
Orders
67Given that the father and mother are responsible, intelligent and loving parents, I anticipate it will be unnecessary to make the detailed orders that are sometimes required in proceedings under the Convention to ensure the children’s return. Ideally, arrangements can be made for the younger boys to join the mother and Lapo on their flight home on Monday, but otherwise I anticipate the mother would remain in Perth for such short time as is necessary to arrange their journey. The children should be in the mother’s care at least 24 hours prior to their departure so the mother can have a chance to calm Sergio and deal with any difficult behaviour she might experience after he learns of the outcome of these proceedings.
68Although I was asked by senior counsel for the father to impose conditions on the return of the children by requiring the mother to sign such documents as are necessary to ensure that the children can legally re-enter Australia for future visits with the father, I am not satisfied that such conditions are necessary or appropriate. The mother has foreshadowed the possibility of approaching the Italian court for the discharge of the orders requiring her to allow the children to come to Australia (given the concern that they might again be retained here). That is a matter now for the Italian court. If it remains the case that there are orders permitting the father to have the children visit him in Australia then I have no reason to doubt that the mother would sign such documents as would be required to facilitate such visits.
69Subject to hearing from counsel, I propose to make the following orders:
1.[MR TADDIA] (“the father”) do all such things necessary to ensure that the children [SERGIO TADDIA] born … October 2002, and [MAX TADDIA] born … February 2008 (collectively “the children”), are returned to Italy, if practicable on 4 June 2018, or if not practicable on the soonest practicable date thereafter.
2.The father shall ensure the children come into the care of [MS BAGINI] (“the mother”) at least 24 hours prior to the time of their departure.
3.Paragraph 1 of the orders made on 18 October 2017 relating to the deposit of the children’s passports be discharged and the Registry of the Family Court of Western Australia be authorised to deliver the passports to the mother.
4.Paragraph 2 of the orders made on 18 October 2017 be varied by discharging the injunction restraining the mother from removing the children from the Commonwealth of Australia.
5.Paragraph 3 of the orders made on 18 October 2017 be discharged and the names of the children be removed from the Family Law Watch List.
6.Paragraphs 1, 2, 4, 5 and 6 of the orders contained in the Minute attached to the orders made on 30 November 2017 relating to the deposit of the children’s passports be discharged.
7.All applications and responses filed and pending in the Family Court of Western Australia be otherwise dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Family Court of Western Australia.
KM
ASSOCIATE1 JUNE 2018
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